CITATION: Atkin v. Pepin et al, 2016 ONSC 2599

PETERBOROUGH COURT FILE NO.: 75/15 SR

DATE: 20160418

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wenda Lynn Atkin and Steven Joseph Lesperance Responding Party/Plaintiffs

AND:

Henry Pepin and Laurie Pepin Defendants

AND:

Her Majesty the Queen in Right of Ontario (Ontario Provincial Police) Moving Party/Defendant

BEFORE: J.E. Ferguson J.

COUNSEL: Nathan M. Ross, Counsel, for the Responding Party/Plaintiffs Rina M. Li, Counsel, for the Moving Party/Defendant

HEARD: January 22, 2016

COSTS ENDORSEMENT

[1] I heard a motion to strike the plaintiffs’ claim on January 22, 2016. The Plaintiffs seek an order for costs in the sum of $4,500.00. The Defendant, Her Majesty the Queen in Right of Ontario (“Ontario”) submits that no costs should be awarded for this motion.

Costs – Applicable Principles:

[2] Pursuant to Rule 57.01(1) of the Rules of Civil Procedure, the following factors are applicable to the fixing of costs for this motion:

a. The principle of indemnity;

b. The amount of costs that an unsuccessful party could reasonably expect to pay;

c. The relief sought and the relief gained;

d. The conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

e. Whether any step in the proceeding was improper, vexatious or unnecessary.

Rules of Civil Procedure, RRO 1990, Reg.194, Rule 57.01(1)

Costs should not be awarded where success was divided:

[3] The overriding principle in awarding costs is to make an award that is fair, just and reasonable in all of the circumstances including the reasonable expectations of the parties. The Rules of Civil Procedure and the jurisprudence have carved out various guidelines that usually carry the day. For example, where success is found to have been divided, there are normally no costs awarded.

O’Mara v. Northern Bruce Peninsula (Municipality), 2012 ONSC 5474 at para 16-17

[4] The Plaintiffs’ Statement of Claim, issued on March 16, 2015, originally contained two causes of action: malicious prosecution and “unlawful interference with the liberty or property of an individual.” The latter cause of action did not exist in law.

[5] On July 22, 2015 after being served with a Notice of Motion to strike out the two causes of action, the Plaintiffs served an Amended Statement of Claim deleting the two previous causes of action and replacing them with six new causes of action: abuse of process; misfeasance in public office; intimidation; trespass; negligent investigation; and wilful damage to property. The latter also did not exist in law.

[6] In response to the Plaintiff’s Amended Statement of Claim, Ontario served a revised Notice of Motion on September 9, 2015, seeking an Order dismissing all six new causes of action. The original motion date of September 18, 2015 was adjourned to January 22, 2016 in light of the Plaintiffs’ Amended Claim.

[7] On January 12, 2016, approximately one week prior to the date of hearing, the Plaintiffs served an Amended Amended Statement of Claim. This new claim crossed out four of the previous six causes of action, added a new cause of action in the form of misfeasance in public office and left one remaining (intimidation).

[8] It is clear that success on the motion was divided. The plaintiffs’ most recent claim was not struck. However, Ontario took many steps to move this along.

[9] In light of the Plaintiffs’ concessions in its Amended Amended Statement of Claim, Ontario submits that if the Plaintiffs had been more careful in their pleadings, Ontario’s motion to strike would have been shortened or even rendered unnecessary.

[10] The Plaintiffs’ Amended Statement of Claim, served on Ontario on July 22, 2015, replaced the two original causes of action with six completely new causes of action. This amendment changed the fundamental nature of the legal issues in dispute and rendered Ontario’s previous motion preparation useless.

[11] Ontario submits that if the court decides to award costs, the quantum of costs should be reduced to reflect the Plaintiffs’ conduct.

[12] In their costs submissions dated February 4, 2016 the Plaintiffs alleged that Ontario had been delaying on this matter.

[13] In my decision dated January 27, 2016, I expressly held that the Crown had not been dilatory in bringing this motion.

Atkin v. Pepin and OPP, 2016 ONSC 679 at para 6

[14] There shall be no order as to costs.

J.E. Ferguson J.

Date: April 18, 2016